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Counter-terrorism laws can hurt humanitarian action

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GENEVA, 22 July 2013 (IRIN) -

The growing body of counter-terrorism legislation is having a direct
impact on humanitarian action, restricting funding, stalling project
implementation, and resulting in an increased climate of
self-censorship by aid workers, according to a new, independent study.

Commissioned by the UN Office for the Coordination of Humanitarian
Affairs (OCHA) and the Norwegian Refugee Council (NRC) on behalf of the
Inter-Agency Standing Committee (IASC), the report - released last week
in Geneva - assessed the consequences of counter-terrorism policies
epitomized by the Patriot Act introduced in the wake of the 9/11
attacks on the USA in 2001.

"The impact of counter-terrorism measures on humanitarian action has
been the source of growing concern within the humanitarian community. A
particular fear has been that people in areas controlled by non-state
armed groups designated as terrorists may have no or diminished access
to humanitarian assistance and protection," said Kyung-wha Kang,
assistant secretary-general for humanitarian affairs.

The report
pt_note.pdf> , Study of the Impact of Donor Counter-Terrorism Measures
on Principled Humanitarian Action, was undertaken by a group of
independent researchers, and focused on two cases studies: Somalia and
the Occupied Palestinian Territory (OPT).

Impacts

"We did find negative impacts on humanitarian activities, as
restriction of funding, blocking of projects and self-censorship by IOs
[international organizations] and NGOs. After 2008, for example, when
the United States listed Al Shabab [the Somali militant group] as a
terrorist group, we saw an 88 percent decrease in aid to Somalia,
between 2008 and 2010. In OPT, beneficiaries can be excluded from
humanitarian aid especially in Gaza, under Hamas control [also
proscribed by the US]," said Kate Mackintosh, co-author of the study
with Patrick Duplat.

The report pointed out that the wariness of aid agencies over falling
foul of counter-terrorism legislation had a significant impact on
humanitarian programming.

"The research uncovered a high level of self-limitation and
self-censorship. This was particularly acute in organizations which
perceived their reputation to be highly vulnerable, most notably
faith-based Islamic NGOs. The risk of criminal prosecution, as well as
of significant reputational damage, appears to be leading in some cases
to over-compliance," the report noted.

Aid agencies also sought to ensure that counter-terrorism obligations
are passed on to local implementing partners. "This is both a
requirement of some donors in the primary funding agreements but also
due to UN agencies' and international NGOs' own counter-terrorism
requirements dictated by their headquarters. In the case of the OPT, at
least four UN agencies have included standard donor-determined
counter-terrorism clauses in their subsidiary funding agreements. This
has caused tensions with local implementing partners," the study said.

On the ground

These measures are having a direct impact on how aid and aid workers
are perceived.

"In Somalia, the implementation of sanctions and counter-terrorism
measures against Al Shabab is considered by many humanitarians to have
contributed to an already polarized environment in which humanitarian
actors are not perceived as neutral, impartial or independent. While
hard to either demonstrate or measure, this structural impact is
significant because it has consequences that will stretch into the
future and across different contexts," the report said.

The impact in Gaza for example is that "the parameters of humanitarian
action have, for the most part, been shifted so that programmes are
designated firstly to avoid contact with or support to the designated
group (Hamas), and only secondly to respond to humanitarian needs."

Certain donor counter-terrorism measures have presented humanitarian
actors with a serious dilemma. If we abide by our principles, we may
break the law and face criminal prosecution.

As a consequence, the role of local NGOs in humanitarian action in Gaza
is diminishing. "Some local NGOs have refused grants from donors due to
counter-terrorism clauses, impacting the ability of donors or UN
agencies and international NGOs to find qualified partners."

Beneficiaries at risk

Beneficiaries are directly affected by the constraints. In Gaza, one
NGO could not carry out a food distribution to 2,000 families because
its donor did not authorize it to share its beneficiary list with the
Ministry of Social Affairs.

"This was considered to be too close an engagement with the Hamas
administration. Another organization could not progress with a planned
school psychosocial project because the headmaster was perceived to be
too senior a figure in the Hamas administration to cooperate with,"
wrote Makintosh and Duplat.

Balance

Duplat highlighted that some exceptions have been made by donors in
extreme crisis. "They have changed or flexibilized rules and
application requirements for aid, for example in the famine and drought
in Somalia in 2011. The bad point is that you are not supposed to wait
for an extreme crisis to happen to get flexible," he said.

Among the recommendations of the study are that: counter-terrorism
policies should include exceptions for humanitarian action; they should
not undermine local humanitarian actors; they should exclude ancillary
transactions and other arrangements necessary for humanitarian access;
and donor states should avoid promulgating on-the-ground policies that
inhibit engagement and negotiation with armed groups.

"Certain donor counter-terrorism measures have presented humanitarian
actors with a serious dilemma. If we abide by our principles, we may
break the law and face criminal prosecution. Adherence to some
counter-terrorism laws and measures may require us to act in a manner
inconsistent with these principles," noted the study foreword.

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